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‘Martin was awarded workmen’s compensation by the Division, the County Court reversed, and Martin appeals.

That may be true, but the fact of the matter is that it was on the job that Martin ate and talked with Bradford, and Bradford became enraged and struck him. But for the fact that Martin was on the job, he would have had no contact with Bradford and would not have been assaulted by him. As the court said in Sanders v. Jarka Corp., 1 N.J. 36, 41, 61 A.2d 641 (1948), ‘The employment * * * was the cause in the sense that, but for the employment, the accident would not have happened. * * *’

Lichtman argues that an assault is compensable if it grows out of a quarrel whose subject matter is related to the work, but not when the assault is due only to personal animosity, even though it arose out of the enforced contact of the factory. We hold that there is no longer room for such a distinction under our cases, and that ‘even if the subject of the dispute is unrelated to the work, the assault is compensable if ‘the work of the participants brought them together and created the relations and conditions which resulted in the clash.‘‘ 1 Larson, Workmen’s Compensation Law, p. 130 (1952).

In Crotty v. Driver Harris Co., 49 N.J.Super. 60, 72, 139 A.2d 126, 133 (1958), we said:

‘The ‘positional’ or ‘but-for’ test has been adopted in this jurisdiction. Sanders v. Jarka Corp., * * * 1 N.J. (36) at page 41, 61 A.2d (641) at page 643; Gargiulo v. Gargiulo, * * * 13 N.J. (8) at page 13, 97 A.2d (593) at page 595; Howard v. Harwood’s Restaurant Co., * * * 25 N.J. (72), at page 82 et seq., 135 A.2d (161) at page 166, where the doctrine is fully explored by Justice Burling. See, also, Larson ‘Legal Aspects of Causation in Workmen’s Compensation,’ 8 Rutgers L.Rev. 423, 427. As observed in the Howard cases:

‘* * * ‘But-for’ connotes a standard of reasonable probability. Thus stated, the question is whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere. * * *‘ (25 N.J. at page 83, 135 A.2d at page 166).

* * * Under the ‘but-for’ test, assaults by co-workers are compensable as long as they are not motivated by personal vengeance stemming from Contact with the employee outside of the employment. Howard v. Harwood’s Restaurant Co. * * * 25 N.J. at page 84, 135 A.2d at page 167; Larson, op. cit., s 11.16(c), 11.21, pp. 135, 136.’ (Emphasis ours.)

In Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15 (C.A.D.C.1940), cert. denied310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940), cited with approval in Diaz v. Newark Industrial Spraying, Inc., supra, at 35 N.J. 591, 174 A.2d at 479, the court said:

‘The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business. * * *

* * * The shift (to compensability) involved recognition that the environment includes associations as well as conditions, and that associations include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment. * * *.’(122 F.2d at p. 15)

After reviewing the conflicting views as to the compensability of injuries arising out of on-the-job quarrels, Justice Rutledge said that he considered the better view to be the one which:

‘* * * rejects the test of immediate relevancy of the culminating incident. That is regarded, not as an isolated event, but as part and parcel of the working environment, whether related directly to the job or to something which is a by-product of the associations. This view recognizes that work places men under strains and fatigue from human and mechanical impacts, creating frictions which explode in myriads of ways, only some of which are immediately relevant to their tasks. Personal animosities are created by working together on the assembly line or in traffic * * * No worker is immune to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and important, personal and official. But the explosion point is merely the culmination of the antecedent pressures. That it is not relevant to the immediate task, involves a lapse from duty, or contains an element of volition or illegality does not disconnect it from them nor nullify their causal effect in producing its injurious consequences. Any other view would reintroduce the conceptions of contributory fault, action in the line of duty, nonaccidental character of voluntary conduct, and independent, intervening cause as applied in tort law, which it was the purpose of the statute to discard. * * *.’(112 F.2d, at pp. 16—17)

‘While this latter case involves a work dispute, the reasoning is significant, since any jurisdiction which accepts the but-for or positional doctrine generally would have no difficulty applying it to disputes induced by the irritations of compulsory human contact and so reaching the same result as that in the Hartford Accident case.’

Lichtman points out that in De Nardis v. Stevens Construction Co., 72 N.J.Super. 395, 178 A.2d 354 (1962), aff’d38 N.J. 300, 184 A.2d 417 (1962), we stressed the fact that De Nardis was struck with a tool supplied by the employer and that the attack was triggered by the injured workman’s statement to the attacker that he had no time to argue and had to get back to work. This, argues Lichtman, proves that our law still requires some such work-connection. We disagree. Those facts were mentioned in the De Nardis case because they existed in that case, but that does not establish that similar facts must always be present to justify compensation. As was pointed out in the Crotty case, supra, we have adopted the ‘but-for’ and ‘positional risk’ doctrines. Since then, our ‘horseplay’ cases have recognized the right not only of the victim but of the aggressor to compensation. Diaz v. Newark Industrial Spraying, Inc.. supra. We see no basis for distinguishing an angry assault, such as here, from a playful one (such as in Diaz), a murderous one (such as in Crotty), or an insane one (such as in Howard). See also McKenzie v. Brixite Mfg. Co., 34 N.J. 1, 166 A.2d 753 (1961).

For the foregoing reasons, the judgment of the County Court is reversed and the judgment of the Division is reinstated.’

Opinion

PER CURIAM.

The judgment is affirmed for the reasons expressed in the opinion of Judge Gaulkin in the Appellate Division.

For affirmance: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR and SCHETTINO—5.

For reversal: Justices HALL and HANEMAN—2.

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DODSON v. DUBOSE STEEL, INC.

159 N.C. App. 1, 582 S.E.2d 389 (2003)

Opinion

HUDSON, Judge.

Defendants Dubose Steel, Inc. (Dubose) and American Manufacturers Mutual appeal an opinion and award entered 18 January 2002 by the North Carolina Industrial Commission that awarded plaintiff medical expenses, death benefits and the statutory $2,000 toward burial expenses, for the injury that led to the death of her husband. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff’s decedent John Dodson (Dodson), was employed by defendant Dubose as a truck driver, and was driving a load of steel to Virginia for his employer on 27 September 1999. As a result of the events at issue here, Dodson was struck by a vehicle while outside of his truck, and fell to the pavement on his head. After several days without regaining consciousness, Dodson died. His widow Shelby Dodson, the plaintiff, filed claims for workers’ compensation benefits due while Dodson was still alive, and for death benefits.

The claims were consolidated and heard 27 September 2000, and, in an opinion and award filed on 30 November 2000, Deputy Commissioner William C. Bost found and concluded that Dodson’s injury and death arose out of and in the course of his employment, and awarded benefits to plaintiff.

In an opinion and award filed 18 January 2002 by Commissioner Bernadine Ballance, the Full Commission essentially re-wrote the findings of fact and conclusions of law, but awarded the same benefits. Defendants now appeal.

A. The Standard of Review

The Full Commission is the “sole judge of the weight and credibility of the evidence.” Deese, 352 N.C. at 116, 530 S.E.2d at 553. Furthermore,

the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible. Requiring the Commission to explain its credibility determination and allowing the Court of Appeals to review the Commission’s explanation of those credibility determinations would be inconsistent with our legal system’s tradition of not requiring the fact finder to explain why he or she believes one witness or another or believes one piece of evidence is more credible than another.

Id. at 116-17, 530 S.E.2d at 553.

B. Appellants’ Arguments

11. The root cause of the confrontation between Dodson and Campbell originated when Dodson, while moving with the traffic, merged into Campbell’s lane of traffic forcing Campbell out of his lane. Neither Dodson nor Campbell knew each other prior to this incident. There is no evidence that Dodson intended to force Campbell out of his lane of travel. At the time that the root cause incident occurred, Dodson was driving his truck in the ordinary course of his business for defendant-employer, Dubose Steel, Inc. which was the basic nature of his work as a truck driver. Defendants admit that at the time Dodson was struck by Campbell’s vehicle he was an employee of Dubose Steel, Inc.

12. John Dodson’s injuries and death resulted from an assault upon his person by a vehicle operated by Troy Campbell. Although there had been gestures and verbal exchanges between Campbell and Dodson(which neither of them could hear), based on the greater weight of the evidence, Dodson did not have a wilful intent to injure or kill Campbell when he exited his vehicle and walked toward the driver’s side of Campbell’s vehicle. Dodson appeared to have acted spontaneously.

* * * * * *

14. Dodson’s injury and death arose out of his employment. As a result of his injury and subsequent death, Dodson and now his estate have incurred ambulance and medical bills for treatment for the time that he lived prior to death, as well as burial expenses in excess of $2,000 ...

* * * * * *

2. John Dodson died as a result of an assault on his person by a vehicle driven by Troy Campbell. The assault originated from an argument based on the manner in which Dodson drove his truck in the course of his employment. Hegler v. Cannon Mills, 224 N.C. 669, 31 S.E.2d 918 (1944).

* * * * * *

4. Decedent’s employment as a long distance truck driver caused him to spend the majority of his working hours traveling on highways and streets. Due to the nature of decedent’s work, the risk of driver error causing tempers to flare among strangers on the busy highways was increased. Dodson and Campbell did not know each other so the inciting incident was not due to personal reasons. “Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.” A truck driver’s risk of being struck by a vehicle is a risk greater than that of the general public. 1 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition, § 8 Scope (2000).

Thus, we will first discuss whether the evidence supports these findings and conclusions.

The Full Commission chose to accept certain testimony as credible, which is within its authority, even though there may be evidence from which one could draw a contrary inference. Deese, 352 N.C. at 116, 530 S.E.2d at 553. As we indicated earlier, the Full Commission is the “sole judge of the weight and credibility of the evidence” and need not explain its findings of fact to justify which evidence or witnesses it finds credible. Id. We conclude that ample evidence in the record supported the Commission’s findings of fact.

Next, we examine whether the findings of fact support the Commission’s conclusions of law. We believe that they do. Findings of fact numbers 11, 12, and 14, among others, support the Commission’s legal conclusions and award regarding the root cause of Dodson’s injury.

In their second “Question Presented,” briefed as part B of Argument I, the defendants contend that the Commission erroneously analyzed this case according to the law pertaining to workplace assaults. Defendant’s argue that the Commission’s conclusions and award are contrary to applicable law, for three reasons. They contend that (1) the assault cases do not apply; (2) the employer received no “appreciable benefit” from Dodson’s actions at the time of the injury according to the so-called Good Samaritan cases; and (3) that Dodson’s work did not place him at increased risk of the type of incident in which he was injured.

In the assault cases the analysis of “arising out of” turns on whether the assault “originated in” something related to the job. In the opinion and award, the Commission cites Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918 (1944), as a basis for its conclusion. There, the Supreme Court upheld an award of compensation where the injury and death resulted from an assault that followed a dispute between two cotton mill workers over one’s attempt to supervise the other. The Court there pointed out:

Where men are working together at the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or unimportant. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where ... as a result of it one injures the other, it may be inferred that the injury arose out of the employment.

Id., 224 N.C. at 671, 31 S.E.2d at 920 (citations omitted). Plaintiff cites a number of cases in which this Court and the Supreme Court have held that an accidental injury is compensable where it results from an assault rooted in the performance of workplace duties. See Wake County Hosp. System, Inc. v. Safety Nat’l Casualty Corp., 127 N.C.App. 33, 487 S.E.2d 789, disc. review denied 347 N.C. 410, 494 S.E.2d 600 (1997) (holding that death covered by workers’ compensation where hospital social worker was abducted by hospital laundry worker, who took her to another location where he raped and murdered her, where record does not reflect whether decedent knew assailant.); Pittman v. Twin City Laundry & Cleaners, 61 N.C.App. 468, 300 S.E.2d 899 (1983) (upholding award of compensation where decedent was shot after an argument over whether another worker had been fired or not.)

Defendants argue that the Commission and the Court should analyze this case according to the cases in which an employee on a business trip interrupts his work to engage in personal conduct unrelated to the employer’s business, such as the Good Samaritan cases, and that we should employ an “appreciable benefits” or “increased risk” test. See Roman v. Southland Transp., 350 N.C. 549, 515 S.E.2d 214 (1999); Roberts v. Burlington Indus., 321 N.C. 350, 364 S.E.2d 417 (1988). Because we have held that the evidence supports the Commission’s findings, which in turn support its conclusions to the effect that Dodson’s injury and death resulted from a dispute related to his business of driving, we do not believe that these cases apply. In so concluding, we again refer to the standard of review, according to which we are bound by the findings and conclusions of the Commission if there is any evidence to support them.

In Argument II (Question presented 3), defendants contend that the plaintiff is barred from any compensation because Dodson’s injury and death resulted from his wilful intention to injure Campbell. However, the Commission accepted as credible the evidence discussed above, and made findings of fact, including finding 12 quoted above, which support its conclusion number 3, that defendant failed to prove “by the greater weight of the evidence that [Dodson’s] injury and death resulted from [Dodson’s] wilful intention to injure or kill himself or another.” Because these findings and conclusion are supported by the evidence even though there may have been evidence to the contrary, we reject this argument.

CONCLUSION

In sum, we hold that the evidence supports the findings of fact, which in turn support the conclusions of law of the Commission. Since the Commission properly analyzed this case as an assault in the workplace, its conclusions are consistent with the applicable law. For the reasons set forth above, we affirm the opinion and award of the Industrial Commission.

Affirmed.

Judge McGEE concurs.

Judge STEELMAN dissents in part, concurs in part.

STEELMAN, Judge, dissenting in part and concurring in part.

Campbell pulled up beside Dodson’s truck, looked over at him, motioned back and said “you almost hit me back there.” Campbell made gestures toward Dodson, who responded by shaking his finger at Campbell. Campbell then moved forward in the left lane to where the vehicles ahead of him were stopped at the traffic signal. While the two vehicles were stopped for the traffic signal, Dodson got out of his truck and walked around the front of Campbell’s vehicle, striking the hood with his fist and signaling Campbell to get out of his vehicle. Campbell and other witnesses were under the impression that Dodson was angry as he approached Campbell’s vehicle.

When Dodson reached the left front headlight of Campbell’s vehicle, Campbell turned the wheels to the left and accelerated in an attempt to move into the left-turn lane. Campbell’s vehicle struck Dodson, causing him to fall and to suffer significant head injuries which ultimately resulted in his death on 4 October 1999.

On 25 October 1999, defendant American Manufacturers Mutual Insurance (“American Mutual”) denied the workers’ compensation claim filed by plaintiff, finding that “there was no causal relationship of the employee’s injuries to his employment.” Plaintiff requested a hearing before the North Carolina Industrial Commission regarding the denial of the workers’ compensation claim to determine whether Dodson was acting in the course and scope of employment at the time of his injury.

On 18 January 2002, the Full Commission (“Commission”) affirmed the Deputy Commissioner’s Opinion and Award. The Commission found facts as detailed above and made additional findings of fact and conclusions of law as set out in the majority opinion. Dubose appealed the Commission’s Opinion and Award. American Mutual did not participate in this appeal.

The issue presented in Dubose’s appeal to this Court is whether the death of an employee who was engaged in an act of “road rage” at the time of his injury resulting in his death suffered an injury compensable under N.C. Gen.Stat. Chapter 97. In the event that there are procedural inadequacies in Dubose’s appeal, I would exercise this Court’s authority under N.C.R.App. P. 2 (2003) to suspend the rules and address Dubose’s arguments in their entirety.

I.

Dubose first contends the Commission erred in awarding death benefits to plaintiff because the event causing Dodson’s injury and resulting death did not arise out of and in the course of his employment with Dubose.

Whether an employee’s injury arises out of and in the course of his employment is a mixed question of law and fact. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982). This Court’s review of the Commission’s Opinion and Award is limited to whether its factual findings are supported by any competent evidence and whether its conclusions are adequately supported by its findings. Allen v. Roberts Elec. Contractors, 143 N.C.App. 55, 546 S.E.2d 133 (2001). If the findings of fact compel a conclusion opposite of that reached by the Commission, it is the duty of this Court to reverse the Commission. Warren v. City of Wilmington, 43 N.C.App. 748, 259 S.E.2d 786 (1979).

A. Background Law

B. Arising Out of the Employment

There are two lines of North Carolina cases decided under N.C. Gen.Stat. § 97-2(6) which potentially are controlling in our determination as to whether Dodson’s injuries arose out of his employment. The first line of cases, relied upon by the majority and the Commission, deals with injuries caused by assaults occurring in the workplace or assaults by co-workers. The second line of cases, relied upon by Dubose, addresses injuries to employees occurring when the employee interrupts his business for his employer to engage in personal conduct unrelated to his employer’s business.

1. Assaults in the Workplace

The Commission expressly relied on one of the workplace cases, Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918 (1944), in finding that Dodson’s injuries and death were “rooted in” his employment. In Hegler, tensions between two co-workers, Hegler and Smith, developed over the course of a year and culminated in Hegler’s complaint to his employer about the quality of Smith’s work. Id. at 670, 31 S.E.2d at 919. Two days after the complaint, Smith assaulted and killed Hegler at their workplace. Id.

Our Supreme Court found that the tension between the two co-workers “had its origin in the employment.” Id. at 671, 31 S.E.2d at 919. The Hegler Court also found that the assault was “directly connected with” and “was rooted in and grew out of the employment.” Id. at 670-71, 31 S.E.2d at 919. Hegler affirmed the Commission’s findings and conclusions that the death had occurred in the course of and arose out of the employment. Id.

In the present case, the incident giving rise to Dodson’s injury and death was not an assault by a co-worker occurring at the workplace. Therefore, I would hold that this case is not controlled by the decisions concerning assaults in the workplace or assaults by co-workers.

2. Increased Risk Analysis

The facts and issues presented here are more analogous to the cases where an employee interrupts his work for his employer to engage in personal conduct unrelated to the employer’s business, such as rendering assistance to a third person. In those cases, our courts primarily have relied on an increased risk analysis to determine whether injuries arose out of the claimant’s employment.

In adopting the increased risk approach, our Supreme Court expressly rejected the “positional risk” doctrine, where an injury arises out of the employment if it “ ‘has its source in circumstances in which the employee’s employment placed him.’ ” Roberts, 321 N.C. at 359, 364 S.E.2d at 423 (quoting Bartlett, 284 N.C. at 235, 200 S.E.2d at 196). Thus, even when employment provides “a convenient opportunity” for injury, it is not necessarily the contributing proximate cause. Robbins, 281 N.C. at 240, 188 S.E.2d at 354.

Our Supreme Court applied the increased risk analysis in Roberts, supra, where the decedent-employee worked as a furniture designer and often traveled to visit retail stores selling his employer’s furniture. Id. at 351, 364 S.E.2d at 418. While he was returning home from a business trip, Roberts was struck and killed by a vehicle as he attempted to help an injured pedestrian who had no connection to his duties with his employer or his employer’s business. Id. at 351, 364 S.E.2d at 419. The Roberts Court concluded that Roberts’ employment did not increase the risk of being struck while assisting a pedestrian on the roadside and that “[t]he risk was common to the neighborhood, not peculiar to the work.” Id. at 358, 364 S.E.2d at 423. The Court further held that although his employment may have placed him in the position to rescue the injured pedestrian, Roberts’ own “decision to render aid created the danger,” not the nature of his employment. Id. at 359, 364 S.E.2d at 423. Because it concluded Roberts’ injury did not arise out of his employment, the Court ordered the reinstatement of the Commission’s Opinion and Award denying compensation. Id. at 360, 364 S.E.2d at 424.

The Commission further concluded that “[a] truck driver’s risk of being struck by a vehicle is a risk greater than that of the general public.” While a truck driver may experience an increased risk of being in a collision or accident involving his truck, his employment cannot reasonably be seen as increasing the risk of the driver himself being struck by a vehicle after exiting his truck to confront another driver on the roadside. The risk of confrontations while driving, commonly referred to as “road rage,” is not unique to employment as a truck driver. It is something that can occur at anytime to any member of the general public in the normal course of operating a motor vehicle. The mere fact that Dodson drove on the highway more often as a result of his employment may have provided “a convenient opportunity” for exposure to “road rage,” but as our Supreme Court held in Roberts and Robbins, supra, demonstrating positional risk does not establish a compensable injury.

The facts as found by the Commission compel the conclusions that the proximate cause of Dodson’s injury was his decision to exit his vehicle to confront Campbell in an act of “road rage” and that the risk of such an act is not incidental or unique to nature of his employment as a truck driver but is a risk to which every member of the general public is equally exposed. Therefore, I would hold the Commission’s findings do not support the conclusion that Dodson’s injuries arose out of his employment with Dubose.

C. In the Course of the Employment

“In the course of employment” refers to the time, place and circumstances giving rise to the injury.

With respect to time, the course of employment begins a reasonable time before work begins and continues for a reasonable time after work ends. The place of employment includes the premises of the employer. Where the employee is engaged in activities that he is authorized to undertake and that are calculated to further, directly or indirectly, the employer’s business, the circumstances are such as to be within the course of the employment.

Pittman, 61 N.C.App. at 472, 300 S.E.2d at 901-02 (citations omitted) (emphasis added). The circumstances element is fulfilled when “ ‘the employee is doing what a man so employed may reasonably do within a time which he is employed and at a place where he may reasonably be during that time to do that thing.’ ” Harless v. Flynn, 1 N.C.App. 448, 456, 162 S.E.2d 47, 53 (1968) (citations omitted).

II.

In its second argument, Dubose contends the Commission erred pursuant to N.C. Gen.Stat. § 97-12(3) in awarding death benefits to Dodson where his death was proximately caused by his own willful intent to injure or kill himself or another. N.C. Gen.Stat. § 97-12(3) provides that “[n]o compensation shall be payable if the injury or death to the employee was proximately caused by: ... (3)[h]is willful intention to injure or kill himself or another.” The employee must intentionally and purposefully intend to injure another. “Neither acts by the claimant, nor mere words spoken by the claimant and unaccompanied by any overt act, will be a sufficient bar to compensation unless the willful intent to injure is apparent from the context and nature of the physical or verbal assault.” Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 710, 295 S.E.2d 458, 461 (1982). N.C. Gen.Stat. § 97-12(3) provides an affirmative defense for which Dubose has the burden of proof. Id. at 709, 295 S.E.2d at 460.

Based on statements by Campbell and other witnesses, the Commission found that Dodson struck Campbell’s vehicle with his fists, pointed at Campbell and generally seemed angry. The Commission did not find that Dodson verbally threatened Campbell or that any physical assault on Campbell occurred. The context of this incident does not make apparent the fact that Dodson willfully intended to injure Campbell, only that he intended to confront him. I would hold that Dodson is not precluded from receiving compensation under N.C. Gen.Stat. § 97-12(3).

In summary, because the Commission’s findings do not support its conclusions that Dodson’s injuries arose out of and in the course of his employment, I would hold the Commission erred in concluding that Dodson suffered a compensable injury under N.C. Gen.Stat. § 97-2(6) and in awarding death benefits.

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STEWART v. CHRYSLER CORPORATION

350 Mich. 596, 87 N.W.2d 117 (1957)

Opinion

Here again the Chief Justice would overrule the appeal board where the latter-having been called upon to apply the course of employment test-has decided a pure question of fact. Issue having thus been joined amongst our membership, the question facing us may in short interrogatory be stated as follows: Was the board justified in finding from the testimony that McCoy, convicted as he has been of manslaughter of Stewart, was the aggressor. I hold for affirmative answer.

‘Even the first blow, if it was not a particularly damaging one, or if it was provoked by verbal abuse or by a mistaken idea of attack by a detested co-employee, may be held to fall short of aggression.

Larson refers here, of course, to Dillon’s Case, 324 Mass. 102, 85 N.E.2d 69, 71, from which I quote with intent of adoption as follows:

In this case the facts as found show that Stewart, in circumstances of annoying provocation, did no more than slap McCoy’s face with his hand. What was the severity of the slap? Was it a ‘particularly damaging one’? Did it amount to ‘a vicious and unprovoked assault,’ as found in presently considered Horvath? Was it of such force as to require our matter-of-law brand of aggressor on Stewart? Surely, and as the signers of this opinion note from the appeal board’s essential findings, these are questions for constituted triers of fact rather than questions of law for detached appellate judges.

‘* * * The question presented in this type of case, as in others involving the issue whether an injury arose out of the employment, is essentially one of fact, to be determined in view of all the relevant circumstances, and the conclusion of the commissioner must stand unless it is one he could not reasonably or legally reach upon the subordinate facts.’

The appeal board found on authority of Dillon and Stulginski, and rules set forth in Marshall v. Baker-Vawter Co., 206 Mich. 466, 173 N.W. 191; Schultz v. Chevrolet Motor Co., 256 Mich. 393, 239 N.W. 894, and Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530, that McCoy was the aggressor and that Stewart’s injury and death at McCoy’s blow arose out of and in the course of Stewart’s employment. Such finding is fully supported by evidence. The board found:

My Brother concludes that Horvath v. La Fond, 305 Mich. 69, 8 N.W.2d 915, is controlling and that it requires reversal of the appeal board’s order awarding compensation to Stewart’s widow. As to Horvath I am in agreement with the appeal board that it is factually distinguishable. The board said:

I vote to affirm.

SMITH, EDWARDS and VOELKER, JJ., concurred with BLACK, J.

Appeal from an award of compensation by the workmen’s compensation appeal board.

Did decedent’s injury arise out of his employment? Horvath v. La Fond, 305 Mich. 69, 8 N.W.2d 915, is controlling and conclusive of an answer in the negative. Horvath is supported by the weight of authority. ‘The great majority of jurisdictions which have considered the question of aggression apart from express statutory defenses have held that the aggressor in an admittedly work-connected fight cannot recover compensation.’ Larson’s Workmen’s Compensation Law, § 11.15(a), citing cases.

The appeal board, after finding that decedent struck the first blow, held that that fact did not bar compensation, relying on Dillon’s Case, 324 Mass. 102, 85 N.E.2d 69. In Dillon the Massachusetts court held in effect that ‘too fine a point’ ought not to be made ‘as to who was the aggressor’, but noted that Horvath is to the contrary. And Larson (§ 11.15[c)], in discussing Dillon’s Case, recognizes that only in Massachusetts and New Hampshire (Newell v. Moreau, 94 N.H. 439, 55 A.2d 476) has the aggressor defense been abolished in workmen’s compensation cases. Lucid as the reasoning of Chief Justice Qua undoubtedly is in Dillon’s Case on the question of whether an injury resulting from a work-connected fight arose out of employment, its adoption in Michigan is foreclosed so long as Horvath stands.

‘The manner in which the department reached the conclusion that under the above undisputed facts Horvath’s death arose out of his employment is indicated by the following from the opinion filed: ‘* * * The assault was not provoked by any personal animosity between plaintiffs’ decedent and John Gaines. * * * It was an act in the course of their work which provoked the assault and the fatal injuries were inflicted by anger over an act shortly before committed in the conduct of the work. * * * it was an act done in connection with the work which set in motion the action which ultimately resulted in plaintiffs’ decedent’s death.’

‘There might be room for applying the above reasoning to the facts in this case if the injured employee had been the one on whom the assault was committed; rather than the one who under the circumstances of this case was unquestionably the deliberate aggressor.’

Award vacated, with costs to defendant.

SHARPE, KELLY and CARR, JJ., concurred with DETHMERS, C. J.

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WHITE v. ATLANTIC CITY PRESS

64 N.J. 128, 313 A.2d 197 (1973)

Opinion

The opinion of the Court was delivered by

PASHMAN, J.

On the morning of April 13, 1971, petitioner John B. White, while driving his automobile to work, picked up two young hitchhikers. They returned his favor by committing acts of felonious assault and robbery upon him. Petitioner filed a workmen’s compensation benefits claim pursuant to N.J.S.A. 34:15-7. Atlantic City Press, employer-respondent, denied compensability for three reasons. First, it contended that no employment relationship existed; second, that the going and coming rule precludes recovery should such relationship be found; and, third, that the picking up of a hitchhiker relieves an employer of liability even if the accident were otherwise compensable. The Judge of Compensation found for petitioner on the first two issues, but felt constrained to rule against him on the third, on the authority of Beh v. Breeze Corporation, 2 N.J. 279, 66 A.2d 156 (1949). He therefore dismissed the petition and the Appellate Division affirmed in an unreported Per curiam opinion. We granted certification, 63 N.J. 497, 308 A.2d 662 (1973). We take this opportunity for a fresh look at the hitchhiker doctrine. We reverse.

Petitioner testified that on the eventful morning of April 13, 1971, he left his home around 5:00 A.M., his usual time, and while still in Atlantic City not too far from his own residence, he picked up two hitchhikers who wanted to be taken to a bus station. Petitioner added that he had never encountered or known of harmful incidents in all the times he picked up hitchhikers. The drive to the bus station necessitated a detour of several blocks from petitioner’s customary route but as was evidenced, no appreciable time would have been lost since one could get to Pleasantville by several alternative express roads. While waiting at a red light, one of the hitchhikers pulled a knife and demanded petitioner’s money. A fight ensued, and with White losing control, his automobile bounced against several parked cars. Petitioner was hospitalized with lacerations and stab wounds in the face, abdomen and hand, and the assailant was taken into police custody. Petitioner resumed his work a week later.

Respondent did not pay petitioner directly for deliveries. Instead, it paid $50 weekly to the person with whom it had originally contracted for the delivery, one La Compt, who had in fact turned over the job to White in February 1971 and endorsed all checks to him from that date forward. Respondent claims it was never notified of this transfer; but White testified he commenced the delivery at the request of circulation manager Attig who met him several days at the paper pickup point.

There was testimony that in addition to Attig, one of the other circulation managers, several of the office employees and most of the deliverymen were familiar with White’s deliveries. The day following the accident, the Press in a news account reported the knifing incident and identified White as a Press employee. It thus appears that if White’s testimony is credited, he had been employed in a De facto status at the time of the accident.

The judge of compensation determined that in the event petitioner should prevail on appeal, he would be entitled to hospital costs of $195 and permanent disability benefits of $1,100. These supplementary findings were made to obviate the need for remand in the event of reversal.

I.

Insofar as either of the factual hypotheses aforesaid may be viewed, as we here hold, as a proper legal foundation for the ultimate conclusion of employment relationship by the trial court, there was substantial credible evidence in the record in support thereof. Moreover, in our view, the same evidence which supports the express finding of the Judge aforementioned that respondent knew or should have known of the distribution by White also supports and justifies a finding of actual knowledge by respondent. In the interest of a just and expeditious conclusion of this litigation, we exercise our original jurisdiction and so find, R. 2:10-5, rather than remand for a more specific finding on the point.

In view of the substantiality of the evidence discussed above in support of either of the alternative factual findings of the Judge of Compensation which we have mentioned, we affirm the conclusion of employment relationship arrived at below.

II.

Her right to compensation rests upon the principle that whenever an employee, because of contract, necessity, express permission or established and accepted practice, uses his car regularly or frequently in connection with his employment and for the employer’s benefit, he is within the scope of his employment when transporting the car to and from the place of employment in order to have it available for such use.

We deem this an accurate statement of the controlling principle and find it apposite in this case.

III.

We find that the death arose from a risk incidental to the employment and was causally connected therewith because it arose from a risk or hazard incident to the use of the highway. The employee, if he had not stopped for the hitch-hiker, might have been shot anyway. That is one of the risks of travel.

An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted perfomance of his work. Such deviation, if it be considered minor in the light of the particular time, place and circumstance, is realistically viewed by both the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening Workmen’s Compensation Act suggests this approach and nothing in the statutory term dictates any narrower position.

In light of the foregoing conclusions, we need not be detained long by the argument that picking up hitchhikers was a disqualified deviation from the employment. The detour involved was only a few blocks, led to an alternative main route to Pleasantville, and would have taken only a few minutes longer. It was not by any means a serious deviation in terms of comparison with other fact situations we have held not to be fatal to recovery. See E.g., Rainear v. Rainear, 63 N.J. 276, 307 A.2d 72 (1973) and cases cited therein.

For the reasons stated we conclude that Beh v. Breeze Corporation, Supra, should be and is herewith overruled.

Judgment reversed.

For reversal:

Acting Chief Justice JACOBS, Justices SULLIVAN, PASHMAN and CLIFFORD and Judge CONFORD-5.

For affirmance: None.

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JORDAN v. FARMERS STATE BANK OF TEXAS COUNTY

And

BYLER v. FARMERS STATE BANK OF TEXAS COUNTY

791 S.W.2d 1 (Mo. Ct. App. 1990)

Opinion

PREWITT, Judge.

The relevant facts are not in dispute. James R. Byler was the president of the Farmers State Bank of Texas County, Missouri located in Houston, Missouri. Shortly after he arrived for work on April 24, 1986, he received a phone call from a man, who identified himself as Jay Lewis. Lewis had taken Byler’s wife hostage at the Bylers’ home. Lewis told Byler that he had “five seconds to get out of the bank, go to Raymondville, and pick up a hundred thousand dollars.” There is a branch of the Farmers State Bank in Raymondville which is located a few miles from Houston.

The Farmers State Bank had anticipated the possibilities of robbery or extortion. The bank had Federal Bureau of Investigation agents and other law enforcement officers talk with the bank employees about what they should do in the event either occurred. If a person was being held hostage the bank employees were to begin preparation for delivery of the sum demanded and to notify another bank official of the threat and the employee’s intentions regarding it. They were advised to do as they were told and not to try to be heroic, to follow the procedures and guidelines that they were given, both orally and in writing.

In this proceeding Byler and Jordan sought benefits under the Workers’ Compensation Law for the injuries received from the shootings. The Commission, adopting the findings of Chief Administrative Law Judge James H. Wesley II, on the issues here, found that the injuries arose out of and in the course of their employment. Review is of the Commission’s Award. Wilhite v. Hurd, 411 S.W.2d 72, 76 (Mo.1967).

This court’s review under § 287.495.1 includes questions of law. If the facts are not significantly in dispute the question of whether the injury arose out of and in the course of employment is a matter of law. Jordan v. St. Louis County Police Dept., 699 S.W.2d 124, 125 (Mo.App.1985); Dillard v. City of St. Louis, 685 S.W.2d 918, 922 (Mo.App.1984).

Each case involving whether an accident arose out of and in the course of employment must be decided on its own facts and circumstances, by applying the relevant principles and not by reference to some formula, or by attempting to group compensation problems by fact categories. Page, 686 S.W.2d at 533.

The injuries arose out of Jordan’s and Byler’s employment. There is the hazard that an employee or a member of an employee’s family might be held hostage and that currency may have to be delivered to the extortionist at great danger to the employee. The knowledge that banks often have large amounts of currency and that they are sometimes preyed upon by those seeking money through illegal means makes it a natural and a reasonable incident of employment at a bank that an employee could be shot and that shooting would be a rational consequence of the hazard of such employment.

The bank contends that the injuries to Jordan and Byler did not arise “in the course of” employment as it did not occur at the bank nor at any place “where any of the Banks’ business ever transpired.” They say that the employees were not fulfilling the duties of their employment at the time of the assault but were attempting to secure Mrs. Byler’s release.

The injuries were “in the course of” their employment. They occurred during the period of employment at the house of a bank employee whose spouse was being held hostage. In complying with Lewis’ instructions Byler was where his employer had instructed him to be. Under the circumstances it was reasonable for Jordan to go with Byler. Indeed, it is doubtful that she would have wanted to expose herself to such danger if it had not been required or expected of her in her employment. It was reasonable for the employees to be there and they were reasonably fulfilling the duties of their employment.

The award is affirmed.

CROW, P.J., and PARRISH, J., concur.

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MEO v. COMMERCIAL CAN CORP.

80 N.J. Super. 58, 192 A.2d 854 (1963)

Opinion

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This is an appeal from a County Court judgment affirming a Workmen’s Compensation Division award in favor of petitioner Meo against his employer, Commercial Can Corporation. The County Court opinion appears in 76 N.J.Super. 484, 184 A.2d 891 (1962).

The company concedes that the facts are not in dispute and credibility therefore plays no part in the consideration of the case. Indeed, the company could take no other position because the facts surrounding the accident were established solely through the testimony of Meo and his witnesses. The employer limited its case to the medical testimony of two doctors going to the extent of disability suffered by petitioner. Only the more significant facts need be referred to; a somewhat more detailed account may be found in the cited County Court opinion.

The Brooklyn plant went on strike November 15, 1959. On February 1, 1960 some 80 of the 105 employees at the Newark plant, members of a local affiliated with the Teamsters’ Union, went out on strike. Meo was ordered by the company president to keep the Newark operation going, and to this end he, among other things, interviewed and hired workers to replace those who had struck. Among the employees who continued to work were five relatives of Meo, including his son-in-law, John Bellomo. Some of the five were union members; others belonged to management. Meo lived in Fairview, N.J., two doors from Bellomo. The company had provided Meo with a car to travel to and from the plant. Bellomo accompanied him on these trips. Meo testified that during the strike he hired some replacement workers at his home, and there were a number of meetings there to plan work schedules.

The strike was a violent one, attended by active, continuous and disorderly picketing at the plant premises. There were as many as 50 or 60 pickets in the morning, a lesser number in the afternoon, and at times there were as many as 100-150 men on the picket line. There were cursing, name-calling, stone-throwing, and efforts to overturn cars attempting to run the gauntlet of the pickets. A number of persons were hurt and had to be taken to the hospital. The Newark police tried to keep order, and the plant was under constant surveillance.

On one occasion when Meo discussed the strike situation with Commercial Can’s president, the latter stated that the Newark plant must be kept open despite any violence, and he would personally attend to anything that happened. Soon after the strike started Meo received a call from the president warning him to be careful, never to leave his home alone, and to ask the Fairview police for protection. Meo got in touch with the Fairview police chief and was provided with the necessary surveillance of his home. He received threatening phone calls at his home practically every night, telling him he had better shut down the plant if he knew what was good for him. A typical call was, ‘You dirty so-and-so; what are you trying to do, take bread and butter out of our mouths? We will get you yet. We are going to spill blood along the road.’ When his wife answered, the caller would hang up. There was a nightly average of four or five calls, and during the last week or so before he was attacked, he received almost a dozen calls a night.

The company, here as below, states the issue to be, simply: ‘Does a workman, who is off duty, while leaving his home to go to work, and who is assaulted within the confines of his home, come within the purview of our Compensation Acts?’ The matter is incompletely put, for it entirely lacks the frame of reference of the strike and petitioner’s responsibilities in the strike setting. It likewise disregards his continuing prior experiences with relation thereto.

The company concedes that Meo’s injuries resulted from an accident arising ‘out of’ his employment, but vigorously disputes that they arose ‘in the course of’ the employment, and therefore are not compensable. In support of its position it relies heavily upon part of the text appearing in 1 Larson, Workmen’s Compensation Law, s 29.21, pp. 447-448 (1952), and 1962 Supp., p. 218:

It will at once be observed that the cases cited to the text, and which we have set out in brackets, relate to a past day when courts generally, as indeed many courts still do, held that assaults occurring outside working hours or away from the place of employment were not compensable. The more modern view has long since broken through the barrier of the limited reasoning of these decisions.

Courts early held that an accident arises ‘in the course of’ employment if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time-the definition adopted in Bryant, Adm’x. v. Fissell, 84 N.J.L. 72, 77, 86 A. 458 (Sup.Ct.1913). And see the more recent case of Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586-587, 147 A.2d 783 (1959). ‘In the course of’ was sometimes referred to as ‘during’ the employment and considered as dealing mainly with the element of time and space, or ‘time, place and circumstances.’ Giracelli v. Franklin Cleaners and Dyers, Inc., 132 N.J.L. 590, 594, 42 A.2d 3 (Sup.Ct.1945). Looking for a simple rule, the courts soon invented the so-called ‘going and coming’ rule, under which it was held that until an employee actually came onto the employer’s premises he was not in the course of his employment-injuries received while on the way to or from work were not compensable. See Larson, op. cit., s 15.00 et seq., p. 194 et seq.; Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438 (E. & A. 1938); Moosebrugger v. Prospect Presbyterian Church of Maplewood, 12 N.J. 212, 96 A.2d 401 (1953) (a 4-3 decision). As our Supreme Court recently pointed out in O’Brien v. First Camden Nat’l Bank & Trust Co., 37 N.J. 158, 162, 179 A.2d 740 (1962), the very generality of the ‘going and coming’ rule inevitably spawned exceptions. And see Larson, s 15.12, p. 196 et seq. The exceptions have become so numerous that they ‘have now swallowed the rule.’ Horovitz, ‘Workmen’s Compensation: Half Century of Judicial Developments,’ 41 Neb.L.Rev. 1, 51 (1961).

What was said by Justice Francis in O’Brien v. First Camden Nat’l Bank & Trust Co., above, reflects the forward-looking view that New Jersey courts have time and again in recent years exhibited in compensation cases:

‘The various exceptions (to the ‘going and coming’ rule) brought back into sharper focus the basic statutory test of compensability, that is, whether under the facts and circumstances of the particular situation the injury arose out of and in the course of the employment. Too easy reference to the subordinate going and coming precept manifestly pointed in the direction of injustice in particular fact complexes.

Application of this basic test to the facts in a given case must be engaged in with an appreciation of the beneficent social purpose of workmen’s compensation. When so applied, if it can be said reasonably that the employee is serving an incidental interest of his employer at the time of injury, the right to compensation exists.’ (37 N.J. at page 163, 179 A.2d at page 742)

Further,

‘The judicial obligation imposed by the Legislature to administer the Workmen’s Compensation Act liberally to accomplish its beneficent purposes would be subverted by as extensive an application of the going and coming rule as is sought here. Legislation of this type cannot be given a too restricted construction either as to hours of service or premises of the employer or course of employment. * * *

One is inevitably compelled to the conclusion that the conditions surrounding the labor dispute and the totality of circumstances attending Meo’s employment made the assault upon him a natural incident of his work as plant superintendent and, as the county judge observed, a risk occasioned by the nature of his employment in behalf of management. The assault was directly related to his work and is therefore compensable.

‘* * * If the petitioner met with an accident while backing the car out of the garage, there is no question about the compensability. In this case, when he got out of the car, the petitioner left the sphere of his employment. * * *’

The judgment is affirmed.

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KENDRICK v. PEEL, EDDY & GIBBONS LAW FIRM

32 Ark. App. 29, 795 S.W.2d 365 (1990)

Opinion

MAYFIELD, Judge.

In J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark.App.1980), this court said:

A claimant before the Workers’ Compensation Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment. The phrase “arising out of the employment” refers to the origin or cause of the accident and the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred.

269 Ark. at 792–93, 600 S.W.2d at 918. The doctrine of positional risk relied upon by the appellant in the instant case is explained in 1 Larson, The Law of Workmen’s Compensation § 6.50 (3/90), as follows:

An important and growing number of courts are accepting the full implications of the positional-risk test: An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.... This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he was injured by some neutral force, meaning by “neutral” neither personal to the claimant nor distinctly associated with the employment. [Emphasis in Larson.]

In the case at bar, the evidence showed that on the morning of December 28, 1987, Kathy Kendrick was killed while performing her duties as receptionist at the law firm where she worked. Brenda Jones, who was seated in the waiting room, testified that Kendrick was in another office when Simmons came in. She said that Kendrick approached Simmons without any sign of recognition and asked, “Can I help you?” At that point, Simmons shot Kendrick several times, then turned around, looked directly at Jones, and walked out of the office. Jones said Simmons did not attempt to go into any of the offices of the attorneys in the firm nor did he make any threatening moves toward her (Jones).

It was stipulated that before Simmons came to the law office he had already killed fourteen of his family members, and that after he shot Kendrick, he went to the Taylor Oil Company where he shot his former employer and another man, then to the Sinclair Mini–Mart where he shot a former co-worker, and finally to Woodline Motor Freight where he shot his former supervisor. It was also stipulated that Kendrick and Simmons had previously worked together at Woodline Motor Freight and that Kendrick left her employment with Woodline on March 2, 1987, and Simmons left his employment there on November 19, 1986.

Jackson also testified that she saw Simmons come into Woodline and shoot his former supervisor, Joyce Butts, and that he then came into the computer room where Jackson was working, held a gun on her and ordered her to call the police. She said he kept the gun on her until he surrendered to the chief of police, but he did not attempt to hurt her. According to Jackson, Simmons told her “it was all over now, ... he had gotten everybody that hurt him.”

David Eddy, of the appellee law firm, testified that as far as he could determine Simmons had no connection with his law firm or any of its clients. He said none of the attorneys in the firm had ever represented Simmons or were even acquainted with him prior to this incident.

The Commission concluded that the doctrine of positional risk did not apply because the shooting of Kathy Kendrick resulted from a personal vendetta against individuals Simmons felt had harmed him and consequently did not arise out of and in the course of her employment.

Appellant argues that the Commission’s decision is not supported by substantial evidence. He submits that Ms. Jackson’s testimony was not admissible because it was not corroborated, as required by Ark.Code Ann. § 11–9–705(a)(2) (1987), which provides:

Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made, or the hearing conducted, may be received in evidence and may, if corroborated by other evidence, be sufficient to establish the injury.

Appellant also contends that Ms. Jackson’s testimony is hearsay and was erroneously admitted under Ark.R.Evid. 803(24) since appellant had not been notified of her testimony. Appellee argues that appellant did not object at the hearing to the lack of notice; only that the testimony was hearsay. This exception specifically provides that the statement “may not be admitted ... unless the proponent of it makes known to the adverse party sufficiently in advance” that the statement will be offered. Thus, it seems clear that without showing that the required notice has been made, the adverse party is required only to object that the testimony is hearsay.

However, even if Jackson’s testimony about Kendrick’s relationship with Simmons was hearsay and erroneously admitted, we find that when it is completely disregarded, the record contains sufficient evidence to support the Commission’s finding that the positional risk doctrine does not apply in this case. It was stipulated that Kendrick and Simmons had worked together and that all but one of the people shot by Simmons were either members of his family or someone he had worked with. (The evidence does not show whether Simmons was acquainted with one of the men shot at Taylor Oil Company.) There is also evidence in the record that Simmons made no attempt to harm several other people who were in close proximity to those killed, and Ms. Jackson testified that while waiting for the police to come get him “he said that it was all over now, that he had gotten everybody that hurt him.” Clearly, the evidence does not show that Kathy Kendrick’s death resulted from a “neutral” risk which, as we have discussed, means a risk that is “neither personal” to her nor “distinctly associated” with her employment. Certainly it was not like the gust of wind in the Parrish Esso Service Center v. Adams case, supra, which affected everything in its path, or like a “roving lunatic,” referred to by Larson, who would be expected to kill without the selectivity demonstrated by the evidence in this case.

Appellant further complains about the handwritten and transcribed note found in Simmons’ safety deposit box which was offered into evidence by the appellee. The only possible relevance the note might have to this case is that on the bottom of one of the pages is printed “T W I M C” with a circle around it, then “Kendrick Kathy Michelle [the next word is scratched out] was a contributing factor.” The law judge’s opinion states that “no ruling is necessary on the admissibility of this note, and none has been made.” (The Commission’s opinion does not even mention the point.) Again, the Commission is not bound by the rules of evidence. However, if the note is added to Kendrick’s hearsay statements to be disregarded, we think the remaining evidence, considered in the light of the definition of a “neutral” risk, is still sufficient to support the Commission’s decision; and we must give the evidence its strongest probative force in favor of the Commission’s decision and affirm if that decision is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979); Fowler v. McHenry, 22 Ark.App. 196, 737 S.W.2d 663 (1987).

Affirmed.

COOPER and JENNINGS, JJ., agree.

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